Caution! Pile-up ahead...

Like so many of us, I am still on a high from the change of Administration in Washington.  But I confess that, for all my elation at the selection of folks like Stephen Chu and Julius Genachowski to positions of real importance, I’ve had trouble with a number of other Obama appointments.

Mostly, it’s been a matter of regretting the selection of folks who have been complicit in the the creation of the very problems they’re now meant to solve.  One powerful example: the appointment of Mary Schapiro to head the SEC.  Ms. Schapiro is “experienced” all right:  Prior to her appointment, she was the head of the Financial Industry Regulatory Authority, “the largest non-governmental regulator for securities firms doing business with the public”– the industry’s self-regulatory body. Before that, she served as chairman of the Commodities Futures Trading Commission, and prior to that, for six years as a member of the SEC… which is to say that President Obama  has appointed the person who shared oversight responsibility with the SEC throughout the period of such epic failure– the person who failed right along with the SEC– to take over the SEC.  And then there’s Tom “mouthpiece of Monsanto” Vilsack as Secretary of Agriculture, or (before he withdrew) Tom Daschle, or… what’s going on at the Department of Justice.

Gizmodo and CNET both report on the staffing of Justice– with attorneys who have strong ties to the recording industry (in particular the RIAA), the Business Software Association, and the other pillars of copyright extension and enforcement… and to that Axis of Denial’s champion-in-chief: Vice President, nee Senator, Joe Biden.  Quoth Gizmodo:

According to CNET, “President Obama is continuing to fill the senior ranks of the U.S. Department of Justice with the copyright industry’s favorite lawyers” with the selection of Donald Verrilli… Verrilli is the guy who shut down Grokster, sued Google on behalf of Viacom, and sued the pants out of Jammie Thomas in the name of the Recording Industry Association of America, that bunch of nice lovely assholes. His new position at the Department of Justice? Associate deputy attorney general.

This follows up the naming of Tom Perrelli as associate attorney general, the third-in-command post at the DoJ. Perrelli was and probably still is the favorite lawyer of the RIAA, suing people and companies left, right, and center in the name of the recording gang. He will be in charge of the DoJ’s civil, antitrust, and civil rights division.

But don’t go away, because there’s more. Who is the deputy attorney general, the second in command at the DoJ, do you ask? Mr. David Ogden, who-according to his previous job’s biography-represents “media and Internet industries, as well as major trade and professional associations.” He also as “part of the department who successfully defended the Sonny Bono Copyright Term Extension Act before the U.S. Supreme Court.”

Not enough? Don’t worry, because the VP has other friends in other places. Take Neil MacBride, another associate deputy attorney general, who previously was an aide to Biden himself. MacBride was the king of the legal hill at the Business Software Association. As the BSA’s antipiracy enforcer and general counsel, MacBride oversaw the creation of the program that rewarded people for phoning tips about suspected software piracy.

All these picks follow President Obama’s words, announcing that these people “bring the integrity, depth of experience and tenacity that the Department of Justice demands in these uncertain times.” It also comes after his words as presidential candidate, asking for less restrictions and less power for the recording industry.

These Justice appointments (and in other sectors, appointments like them) are alarming because they aren’t folks who stood by and let things happen– things that President Obama has pledged to change–  these are folks who actively helped those things happen.

All of which is, in the moment, maybe just a gripe, a disappointment with a President in whom, as I say, I (like so many of us) have invested probably unrealistic hopes.

But with an eye to the future (from a scenaric perspective, if you will), it’s more troubling.  To take the Justice Department/intellectual property rights case as an example:

If Justice– the government’s chief agent of either copyright/IP extension and enforcement or of copyright/IP reform– acts in the way that the pedigrees of these new appointees suggest it will, real intellectual property rights reform is unlikely to move effectively forward in the U.S.  That’s a problem, because (as I’ve argued, among other places; e.g.,  here and here) IPR reform is key to getting the U.S. back onto an innovative path to growth.

Indeed, as study after study demonstrate, when faced with unreasonable terms and restricted access, people– otherwise law-abiding people– turn into “pirates.”  And when that piracy begets a draconian response from owners (a la the RIAA suing individual students for hundreds of thousands of dollars) a vicious circle– more piracy > more enforcement > more piracy > more enforcement– ensues.  It’s distracting; it’s expensive; and it doesn’t work, so it undermines faith in both the commercial establishment and in the law– which is all to say, to put it politely, it’s not contributing anything constructive to the economy.

Instead, it’s like a big pile-up on the freeway:  it’s pruriently compelling to watch; but in the end, it’s painfully destructive of those directly involved, and it slows down traffic for everyone else.

Update (2.8.09):  for a piece on a different version of the same phenomenon, see Frank Rich’s “Slumdogs Unite!” in today’s NY Times– beautifully observed and written, as ever.